JSC accepts nomination of Mogoeng

The Mail & Guardian has learned from sources within the Judicial Service Commission (JSC)—which spent about three hours on Sunday afternoon deliberating on his fitness for the position—that voting went in favour of supporting President Jacob Zuma’s nomination.

JSC spokesperson Advocate Dumisa Nstebeza would not confirm the results of the voting but said that Zuma had been notified of the JSC’s decision.

He added that for the first time, the president would be furnished with the “full transcript” of the JSC’s deliberations.
He said the decision was taken in “light of the concerns raised” about Mogoeng’s suitability for the position.

With the JSC confirming Zuma’s choice, it is now left to the president to announce Mogoeng’s appointment as head of the judiciary and leader of the Constitutional Court.

As JSC commissioners exited the Westin Grand Hotel ballroom in Cape Town, several of the ANC members from Parliament and the National Council of Provinces (NCOP) looked in a jubilant mood.

Interviews
Mogoeng ended his interview with the JSC on Sunday with a message that, if appointed, he would “ensure” that no judicial officer would “suffer the way [he] did” in the days between his nomination by Zuma and his two-day interview.

Referencing the “intensity of pressure and comments made about [him]” in the media, Mogoeng said he would strive to protect other judicial officers but stopped short of suggesting a media clampdown.

Rather Mogoeng said he would look to do this “without compromising the crucial role that commentators play”.

He assured women, as well as the gay and lesbian community, that their rights would be protected and that he hoped to unite the judiciary by making it “a priority to reach out” to members of the Constitutional Court and other courts—including those critical of his nomination.

Ruling criticisms
He had another rollercoaster day in the interview chair.

Mogoeng was criticised again for not providing a view in the Le Roux vs Dey judgment which he had defended on Saturday by initially saying he did not have time to write a substantial judgment and had regretted not even having written a “superficial” one.

On Sunday, Advocate Izak Smuts raised concerns that a Constitutional Court judge “didn’t give proper consideration” on a matter and “should not be considering even a superficial reasoning” in his judgments.

Mogoeng responded that he had “given [his] submissions and can’t take it any further”.

Mogoeng was also pressed on why he had reverted to pre-constitutional era judgments in reducing rape sentences rather than judgments made after a “drastic change of regime” as noted by Deputy Chief Justice Dikgang Moseneke.

He responded that he was “not able to do an extensive research of all resources available to [him]”.

Mogoeng competently handled questions relating to the administration of courts and noted that if the Constitutional Court was to become the apex court—more stringent sifting requirements were needed to ensure the court wasn’t swamped.

He agreed with African National Congress MP Fatima Chohan’s view that the courts were “ill-equipped” to create legislation.

God wants the appointment
Asked about his relationship with Moseneke—a popular choice with both the public and the legal fraternity—Mogoeng said, “We related strictly as colleagues. We have never developed a friendship or anything of that kind ... He is a man I have lived to admire ... I look up to him more as an older brother than somebody who I would consider a friend.”

Asked whether he believed that he had been chosen by God to become the next chief justice, as apparently intimated to a Constitutional Court colleague in a previous conversation, Mogoeng responded, “I am one of those believers who believe that there is a God and that God does speak ... I prayed and I got a signal that it was the right thing to do, so I accepted [the president’s nomination].”

He did not indicate the nature of the signal “from God”.

There were several lighter moments during Sunday’s proceedings with Inkatha Freedom Party MP Koos van Der Merwe suggesting that Mogoeng was unfit for the office of chief justice and that he should “choose the [former chief justice] Sandile Ngcobo route and walk away from the position”.

Justice and Constitutional Development Minister Jeff Radebe suggested to Van der Merwe that perhaps he had been on the JSC for too long—15 years—and that perhaps it was time for him to “choose the Sandile Ngcobo route.”

The JSC went into closed deliberations at the hotel after the interview concluded.

The JSC, whose 23 members will vote by secret ballot on whether to endorse the president’s nomination of Mogoeng, are likely to find in his favour with the body having enough Zuma appointees (four) and ANC members (three MPs, four National Council of Provinces members and Radebe) to have a 12-11 majority.

Petulance
One of Zuma’s representatives told Mogoeng that he did not support him for the post.

“My candidate is the deputy chief justice [Dikgang Moseneke],” Ntsebeza—who is also the chairperson of the Avusa group—told Mogoeng.

“If it were my choice I would have gone for him.”

Mogoeng replied that he was aware of Ntsebeza’s view but that this was the first time he had heard him “say it”.

Ntsebeza told Mogoeng that if there was “a successful challenge” to his nomination, he should continue to show the dignity he had shown since being nominated for the position by Zuma.

Commissioner Izak Smuts said the “petulance” Mogoeng showed when he “lost his temper” with Moseneke, who chaired the interview, on Saturday raised questions about his suitability for the post.

“After your public display of petulance ... what must this commission understand about the suitability of your temperament to lead not only the judiciary, but particularly the judiciary in Constitutional Court where you would deal with chief justice very closely,” Smuts said.

Heated tempers
On Saturday, while explaining his decisions not to provide reasons for dissenting in a case involving a ruling on homosexuality, Mogoeng snapped at Moseneke, telling him there was “no need for sarcasm”.

He later apologised for the remark.

“If you listen, you might be able to answer,” said Moseneke.

“You don’t have to be sarcastic, sir,” retorted Mogoeng.

Van der Merwe said that, in his 15 years as a commissioner on the JSC, he had never seen a candidate behave that way.

“It points to me that you are not suitable to be the number one lawyer in the country. This is the first time in 15 years that an applicant is so arrogant that he has done what you have done now,” Van der Merwe said.

Back tracking
On Sunday Mogoeng defended his loss of temper.

“There is not a single human being who never loses his or her temper,” he said.

“I am not God, I am a human being. It does happen that you don’t realise your mistake until someone draws it to your attention.

“As soon as I recognised my wrongdoing, I did what I believe any human being, who does not pretend to have a heart of stone, had to do.

“You must be very careful not to overplay the weaknesses we all have as human beings.”

Mogoeng said he had accepted the nomination to be chief justice not because he loved positions, but because “there is work to be done”.

“I had to step forward to be interviewed,” he said. - M&G, Sapa

Niren Tolsi

Niren Tolsi is a freelance journalist.His areas of interest include social justice; citizen mobilisation and state violence; protest; the constitution and the constitutional court and football. Read more from Niren Tolsi